Alston and Another v Marine & Trade Insurance Co Ltd

JurisdictionSouth Africa
JudgeHiemstra J
Judgment Date30 June 1964
Citation1964 (4) SA 112 (W)
Hearing Date05 June 1964
CourtWitwatersrand Local Division

Hiemstra, J.:

Eating cheese can be dangerous to life. This is a recent discovery by medical science. The plaintiff in this matter has helped to confirm it, at a cost which he now wants to recover from the defendant insurance company.

A The patient is rendered vulnerable to cheese when he takes a drug called parstellin. This drug is an effective and recognised cure for manic depression, and when not combined with certain foodstuffs, notably cheese, it has no harmful side-effects.

The plaintiff suffered from such moods of depression, and it is common cause that they were brought on by a brain injury suffered by him in a B road accident. It is also common cause that defendant, as insurer of the relevant car against third party risk, is liable for damage resulting from the accident. The parties have agreed on the facts and have submitted to the Court the one outstanding issue between them, namely, remoteness of damage.

C The plaintiff did not die as reportedly some other similarly placed patients have done, but suffered a stroke directly attributable to the fact that he was treated with parstellin and then partook of cheese. It was agreed that if the stroke can in law be regarded as a consequence of the accident, he is to receive R900 in addition to a sum of R2,000 for other injuries which are not in dispute.

D The administration of parstellin was also agreed to have taken place without negligence on the part of plaintiff's medical advisers, and thus the stage was set for a discourse on causality: Was there a causal link between the accident and the stroke so as to render the stroke compensable in law?

E Hardly any reference to causality can be found in the old authorities, but there is a vast mass of modern learning on the subject. For the sake of clarity only a selection therefrom can be mentioned.

It is useful to observe that causality can arise in three fields, namely, crime, delict and contract, and that slightly different considerations apply. In crime the enquiry into guilt will surround only the criminal act and not the subsequent chain of consequences for the F victim. This holds good also where the victim of an assault dies much later. The enquiry will still not go beyond the cause of death. In delict the enquiry can extend far beyond the injury into the subsequent vicissitudes of the victim. A cause which in the criminal trial may have G seemed dominant, can now in course of time be diluted by new forces, leading to new and unexpected syndromes. The question of compensation becomes beset by complicating features. And so various schools of thought have arisen in this field, of which two are dominant, namely, the 'foreseeability' school and the 'direct consequences' school. In H contract, on the other hand, foreseeability of damage holds uncontested sway. The difference is not surprising, because the law of contract is concerned with duties fundamentally different from those in the law of delict. Prof. McKerron (in 1961 S. A. L. J. at p. 228) suggests that the difference lies in the fact that the duties in contract are self-imposed whereaS those with which the law of delict is concerned are imposed by established rules of law. He says that both logic and justice would seem to require that liability for breach of contract should be limited to such consequences of the breach as the defendant at the time of the

Hiemstra J

contract could reasonably have foreseen. He accepts no such limitation in delict, despite weighty authority to the contrary.

This matter concerns a delict, and in our case law no decisive choice A has yet been made between the various approaches to causality, probably because in many cases either method would give the same result.

For a review of Continental learning on the subject I am indebted to an article by Prof. L. C. de Wet in Tydskrif...

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14 practice notes
  • International Shipping Co (Pty) Ltd v Bentley
    • South Africa
    • Invalid date
    ...Ltd v Haskins; Joffe & Co Ltd v Bonamour 1941 AD 431; R v Mouton 1944 CPD 399; Aliston and Another v Marine & Trade Insurance Co Ltd 1964 (4) SA 112 (W); Kruger v Van der Merwe 1966 (2) SA 266 (A); Mafesa v Parity Versekeringsmaatskappy Bpk 1968 (2) SA 603 (O); Fischbach v Pretoria City Cou......
  • De Klerk v Minister of Police
    • South Africa
    • Invalid date
    ...to the Minister of Police as well. (See [185].) Cases cited Southern Africa Alston and Another v Marine & Trade Insurance Co Ltd 1964 (4) SA 112 (W): referred Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC) (1996 (8......
  • Harm to patients and others caused by impaired junior doctors compelled to work 30-hour shifts or longer : can the minister of health, provincial MECs for health and public health officials be held liable?
    • South Africa
    • Sabinet South African Journal of Bioethics and Law No. 9-2, November 2016
    • 1 November 2016
    ...Corp Ltd v Koch 1963 (4) SA 147 (A).32. Kruger v Van der Merwe 1966 (2) SA 266 (A).33. Alston v Marine & Trade Insurance Co Ltd 1964 (4) SA 112 (W).34. Mukheiber v Raath 1999 (3) SA 1065 (SCA).35. S v Mokgethi 1990 (1) SA 32 (A).36. Smit v South British Insurance Co Ltd 1962 (3) SA 826 (A).......
  • Minister van Veiligheid en Sekuriteit v Geldenhuys
    • South Africa
    • Invalid date
    ...614E - H; 615A - B Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) Alston and Another v Marine & Trade Insurance Co Ltd 1964 (4) SA 112 (W) B Barnard v Santam Bank Bpk 1999 (1) SA 202 (SCA) Bayer South Africa (Pty) Ltd and Another v Viljoen 1990 (2) SA 647 (A) Caxton and Other......
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13 cases
  • International Shipping Co (Pty) Ltd v Bentley
    • South Africa
    • Invalid date
    ...Ltd v Haskins; Joffe & Co Ltd v Bonamour 1941 AD 431; R v Mouton 1944 CPD 399; Aliston and Another v Marine & Trade Insurance Co Ltd 1964 (4) SA 112 (W); Kruger v Van der Merwe 1966 (2) SA 266 (A); Mafesa v Parity Versekeringsmaatskappy Bpk 1968 (2) SA 603 (O); Fischbach v Pretoria City Cou......
  • De Klerk v Minister of Police
    • South Africa
    • Invalid date
    ...to the Minister of Police as well. (See [185].) Cases cited Southern Africa Alston and Another v Marine & Trade Insurance Co Ltd 1964 (4) SA 112 (W): referred Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC) (1996 (8......
  • Minister van Veiligheid en Sekuriteit v Geldenhuys
    • South Africa
    • Invalid date
    ...614E - H; 615A - B Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) Alston and Another v Marine & Trade Insurance Co Ltd 1964 (4) SA 112 (W) B Barnard v Santam Bank Bpk 1999 (1) SA 202 (SCA) Bayer South Africa (Pty) Ltd and Another v Viljoen 1990 (2) SA 647 (A) Caxton and Other......
  • De Klerk v Minister of Police
    • South Africa
    • Constitutional Court
    • 22 August 2019
    ...(6) SA 1 (SCA) ([2014] ZASCA 84) (Scott) para 37. [31] This example is taken from Alston and Another v Marine & Trade Insurance Co Ltd 1964 (4) SA 112 (W). [32] Fourway Haulage SA above n28 para 31; and Scott above n30 para 37. See also Home Talk Developments (Pty) Ltd and Others v Ekurhule......
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